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SC does ‘temporary patchwork’ in CrPC by granting power to Magistrate order accused to give voice samples

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Sanjiv Khanna, JJ, has held,

“until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India.”

The Court was dealing with the question as to whether the Magistrate has power under CrPC to pass an order permitting taking of voice sample in the aid of criminal investigation. Noticing that the CrPC is silent on the said issue, the Court said that the law on the point should emanate from the Legislature and not from the Court for the following reasons,

The Court, however, said,

“what may appear to be legislative inaction to fill in the gaps in the Statute could be on account of justified legislative concern and exercise of care and caution. However, when a yawning gap in the Statute, in the considered view of the Court, calls for temporary patchwork of filling up to make the Statute effective and workable and to sub-serve societal interests a process of judicial interpretation would become inevitable.”

It said that the judicial function is not to legislate but in a situation where the call of justice and that too of a large number who are not parties to the lis before the Court, demands expression of an opinion on a silent aspect of the Statute, such void must be filled up not only on the principle of ejusdem generis but on the principle of imminent necessity with a call to the Legislature to act promptly in the matter. It, hence, conferred the power on the Judicial Magistrate to order a person to give a sample of his voice for the purpose of investigation of a crime.

[Ritesh Sinha v. State of Uttar Pradesh, 2019 SCC OnLine SC 956, decided on 02.08.2019]

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